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Black was similarly successful in leading the Court to embrace his vision of free speech absolutism. In dissenting opinions with Justice William O. Douglas, he wrote inspiring defenses of the free speech rights of suspected Communists during the McCarthy era in the 1950s. But by the 1960s, when the American public was more in the mood to protect speech critical of the government, majorities of the Court followed suit. In the 1964 case New York Times Co. v. Sullivan, the Court unanimously reversed a libel verdict against THE NEW YORK TIMES obtained by an Alabama police commissioner who objected to an ad placed by civil rights protesters. Public debate, Justice William Brennan held for the unanimous Court, should be "uninhibited, robust, and wide-open" and therefore public officials could not sue for libel unless the offending statement was made with reckless disregard for the truth. Similarly, in the so-called "Pentagon Papers" case (New York Times Co. v. United States [1971]), the Court rejected efforts by the Nixon administration to prevent the TIMES and THE WASHINGTON POST from publishing a secret account of events leading up to the Vietnam War.

Black's most satisfying victories of the 1960s were in cases involving basic guarantees of criminal procedure. In one of the most inspiring, Black wrote the opinion for the Court in Gideon v. Wainwright (1963), which held that states were obligated to provide court-appointed lawyers to all defendants in felony cases. Black joined the controversial 1966 decision Miranda v. Arizona, which required police officers to inform criminal suspects of their right to remain silent and to talk to an attorney before answering questions -- now known as the "Miranda rights"; he also joined Mapp v. Ohio, which held that illegally seized evidence had to be excluded from state trials.

Although the Warren Court was criticized for its judicial activism in cases involving individual rights, most of its decisions were popular with national majorities. Even Griswold v. Connecticut, a 1965 decision striking down a Connecticut law that prevented married couples from using contraceptives, was applauded by the country as a whole. But the Court provoked more controversy in Roe v. Wade (1973), when it extended the right to privacy to protect a woman's right to choose abortion. Despite the political firestorm provoked, which included efforts by opponents to encourage the appointment of justices who would overturn it, the Court reaffirmed the core of Roe when it returned to the issue in the 1992 case Planned Parenthood v. Casey.

The main opinion in Casey was written by three Republican appointees: David Souter, Anthony Kennedy, and Sandra Day O'Connor. The first woman appointed to the Court, O'Connor proved particularly effective in staking out a middle ground in many of the most explosive culture war issues of the 1980s and 1990s -- upholding some but not all affirmative action policies, and some abortion restrictions and religious displays, but not others. Along with Justice Ruth Bader Ginsburg, the second woman appointed to the Court, O'Connor was a champion of women's equality, striking down gender restrictions in public universities as well as attempts to strike jurors on the basis of their gender. Some critics objected that O'Connor behaved liked the Arizona state legislator she once had been, expressing the views of the moderate majority of the country more precisely at times than Congress itself. But under O'Connor's guidance and that of Chief Justice William Rehnquist, the Supreme Court generally maintained public confidence in the 1990s and began the new century with approval ratings similar to that of the president and far higher than that of Congress. The branch of government that Hamilton had described as the least dangerous ended the 20th century as arguably the most self-confident.

About the Author
Jeffrey Rosen is a Professor of Law at George Washington University and legal affairs editor of the NEW REPUBLIC. He is the author of the companion book to the PBS Series, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Times Books).
Photo of Earl Warren.
Earl Warren was Chief Justice from 1953 to 1969.

Reproduction courtesy of the University of Southern California Library

Did You Know? John Marshall is the only person in U.S. history to serve as a Congressman, Senator, Cabinet Officer, Governor of a State and Supreme Court Justice.